The dark side of amnesty laws: impunity guaranteed. The case of Nicaragua

by | Apr 12, 2024

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About Tomás Fernández Fiks

Tomás Fernández Fiks holds an LL.M. (Master of Laws) from Columbia Law School. His research is focused on Jurisprudence, Criminal Law and Constitutional Law.

Amnesty laws can, in principle, be an acceptable transitional justice mechanism. It is sometimes the case that, due to lack of resources or political instability, criminal prosecutions are not a viable option against perpetrators of past crimes. The passing of a general amnesty can then provide a clean sheet so that formerly rival groups may coexist peacefully. Moreover, amnesties can be a quick and effective way to release political dissenters who were wrongly imprisoned for exercising their right to protest.

However, amnesty laws also have a dark side. When sanctioned by a government to shield their own officers from criminal prosecution – in which case it would be more accurate to speak of a self-amnesty – these laws block any prospects of accountability. If they are not coupled with complementary mechanisms, such as compulsory reparations to victims or truth commissions, amnesties ensure that perpetrators of human rights violations get away with their crimes. When, additionally, the government responsible for said crimes has control of the judiciary and the media, impunity is virtually secured. This gruesome picture reflects what is currently happening in Nicaragua, as exhibited in the recent Report of the Group of Human Rights Experts on Nicaragua, submitted to the Human Rights Council pursuant to its resolution 52/2, on 28 February 2024.

The Report of the Group of Human Rights Experts on Nicaragua

Despite the lack of collaboration from the Nicaraguan government [Report, 4], the Group – a body composed of three independent experts with the support of a secretariat comprised of United Nations officials – was able to gather evidence of systematic human rights abuses perpetrated by state officials since at least April 2018 and up to this day [3]. These include arbitrary detentions [17], ill-treatment of prisoners – which in many cases reached the threshold of torture [26] –, violations of the right to freedom of movement and the right to nationality [33], and mass exile [45]. Furthermore, these crimes were disproportionately committed against specific actors [14] – namely, university students [48], indigenous people [59], members of the Catholic Church [66], and members of the campesino movement [74], among other groups – who were targeted for being threats to the totalitarian agenda of the government.

The Group also found that the aforementioned crimes were perpetrated in a context of total impunity [23], favored by the centralisation of all state powers in the hands of President Daniel Ortega and Vice President Rosario Murillo. The lack of an independent judiciary, combined with the passing of an amnesty law in 8 June 2019 [25], cemented the conditions under which the pursuit of justice became factually impossible.

The 2019 amnesty law (Ley 996)

The amnesty law was sanctioned with the alleged purpose of securing internal peace and stability after the events of 18 April 2018, in which the government repressed demonstrators who were protesting against its proposed social security reform, leaving a death toll of more than 300 people.

The law granted full amnesty to everyone – without distinction between state officials and citizens – who had participated in the events of 18 April 2018 and thereafter, up to the day of its coming into force. Those imprisoned were to be immediately released, and their criminal record erased [art 1]. All ordinary as well as political crimes were covered by the amnesty, with the exception of “those regulated in the treaties to which Nicaragua is a party” [art 2]. A further provision established that everyone benefited by the law had to refrain from committing acts of the same nature as those amnestied in the future, or else the amnesty would be revoked [art 3].

Some familiar shortcomings

Upon its release, the amnesty law was criticised by the Inter-American Commission of Human Rights and the then United Nations High Commissioner for Human Rights Michelle Bachelet.

Relatedly, the law was criticized in a document elaborated by the Due Process of Law Foundation for being inconsistent with International Law, due to its ambiguity [3.2], openness [3.1], and its nature of a self-amnesty [3.4], which rendered it incompatible with the obligation to investigate and sanction serious violations of human rights, as established by the Inter-American Court of Human Rights in Barrios Altos v Peru. To these objections, it should be added its weak democratic pedigree. Unlike the case of other amnesty laws which, although substantially inconsistent with the duty to investigate and prosecute human rights violations, had been democratically backed – such as Uruguay’s 1986 Ley de Caducidad de la Pretensión Punitiva del Estado (Ley 15.848), which was reaffirmed in a 1989 referendum and a 2009 plebiscite  (see Gelman v Uruguay and relevant commentary) –, it is hardly possible to see Nicaragua’s 2019 amnesty law as the product of the popular will. On the contrary, Nicaragua’s amnesty law resemblances Argentina’s 1983 Ley de Pacificación Nacional (Ley 22.924) – which was sanctioned by the outgoing military coup to avoid criminal prosecution of its own members –, in that its content is just as objectionable as its origin.

In conclusion, given the findings of the Group of Human Rights Experts with regard to the curtailing of civil liberties and the silencing of any form of criticism by the Nicaraguan government, as well as the subordination of the Judicial and Legislative branches to the Executive, the 2019 amnesty law should be characterised as an attempt to guarantee impunity rather than as a tool for social pacification. It serves, in this way, as a reminder of the limits and dangers of amnesty laws sanctioned in authoritarian contexts.

For the Spanish version of the blog, see here.

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